TMI Blog2006 (9) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... or determination. 2. This revision is directed against the judgment and order, dated 12.9.01, passed, in Crl. Appeal No. 54(M)/2000, by the learned Additional Sessions Judge, Nagaon, dismissing the appeal and upholding thereby the judgment and order, dated 22.08.2000, passed by the learned Magistrate, 1st class, Nagaon, in CR Case No. 2150/96, whereby the accused-petitioner stood convicted under Section 138 of the Negotiable Instruments Act, 1881, and sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of three months. 3. Before I deal with the merit of the present revision petition, it is necessary to take note of the material facts, which have given rise to the present revision petition. (i) The Opposite party No. 2 herein instituted a complaint case in the Court of the learned Chief Judicial Magistrate, Nagaon, the case of the complainant being, in brief, thus: M/s Sangita is a partnership firm dealing in electronic goods, namely, Akai, Onida and Panasonic products, the complainant being a partner of the said firm. The accused, as proprietor of a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 20,000/-, which was the total liability of the accused. This cheque was encashed by the complainant and having, thus, realized the entire due amount, the complainant presented the first cheque, dated 11.5.96, which was shown to have been drawn for Rs. 75,000/-, to the bank twice, once on 28.8.96 and, then, on 17.9.96. As the complainant had no liability to pay the said amount of Rs. 75,000/- presentation of the cheque by the complainant and the dishonour thereof, on 28.8.96 and 17.9.96, by the bank cannot legally lead to prosecution of the accused under Section 138 of the N.I. Act. That apart, the entire transaction of giving of the cheque to the complainant by the accused was in good faith and, hence, no offence under Section 420 IPC can be said to have been committed by the accused. No evidence was, however, adduced by the defence. 4. Having found the accused guilty of the offences under Section 420 IPC and Section 138 of the N.I. Act, the learned trial Court convicted the accused accordingly and passed sentence against him as indicated above. As the appeal preferred by the accused has failed to yield any favourable result, the accused has, now, come to this Court with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which rested on him, to show that the said cheque for Rs. 75,000/- was not for any existing liability or debt of the accused-petitioner, Mr. D. Baruah has placed reliance on K.N. Beena v. Muniyappan and Anr. reported in 2001CriLJ4745 , Dhanwantrai Balwantrai Desai v. State of Maharashtra 1964CriLJ437 , Hiten P. Dalai v. Bratindranath Banerjee reported in 2001CriLJ4647 , and State of Madras v. Vaidyanath Iyer 1958CriLJ232 . 9. Mr. D. Baruah also contends that payment of a part of the sum, for which a cheque is drawn, does not absolve the drawer from prosecution under Section 138 N.I. Act if such a cheque is dishonoured for insufficiency of fund. In support of this contention, Mr. D. Baruah places reliance on P.V. Kochayippa v. P.N. Suprasidhan. Rajani Bhawan and Anr. reported in (Ker). 10. Before entering into the merit of the present revision, what is important to note is that the Negotiable Instruments Act, 1881, was amended by the Banking, Public Financial Institutions and Negotiable Instrument Laws (Amendment) Act, 1988, by incorporating a new chapter, in the form of Chapter XVII, prescribing penalties for dishonour of cheques due to insufficiency of funds in the account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a drawer will not be liable to make payment of the entire amount of cheque, the drawer would not be liable to arrange such amount of fund or funds, as the cheque might have, originally, reflected. 12. What logically and clearly follows from the above discussion is that if, as against the cheque for Rs. 75,000/-, which the accused-petitioner had allegedly prepared and given to the complainants firm, a part-payment of Rs. 20,000/- had been received by the complainant's firm, the complaint's firm, having so received the said sum of Rs. 20,000/-, would not be entitled to prosecute the accused-petitioner, for, no cheque for Rs. 55,000/- can be said to have been issued by the accused-petitioner and no notice, demanding payment of the remaining amount of Rs. 55,000/-, can be said to have been received by the accused-petitioner. This inference gets strengthened, when this aspect of the case is analyzed from another angle. The presumption under Section 139 of the N.I. Act, as can be noticed, is to the effect that the holder of the cheque received the cheque either in discharge of a part of the debt or in discharge of the whole of the debt. The holder of the cheque will not be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here be mentioned that the legislature has chosen to use the words 'shall presume' and not 'may presume', the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act. but Section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence e.g., presumptions, and therefore should have the same meaning. Shall presume has been defined in the Evidence Act as follows: Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved until and unless it is disproved. It is a presumption of law and therefore it is obligatory on the Court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumption of law constitute a branch of jurisprudence. While giving the finding quoted above the learned judge seems to have disregarded the special rule of burden of proof under Section 4 and therefore his approach in this case has been on erroneous lines. 15. Thus, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. 16. In no uncertain words has clarified the Apex Court, in Hiten P. Dalal (supra), that when the necessary facts are established, the Court is bound to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of the debt or liability towards the holder. 17. Presumptions, let us bear in mind, are rules of evidence and do not conflict with the presumption of innocence of the accused, for, the burden, on the prosecution, to prove its case, beyond all reasonable doubt, still remains intact. When the facts give rise to a presumption of law, the prosecution shall be taken to have discharged its obligation to prove its case beyond reasonable doubt. In such a case, the onus shifts to the accused to prove the contrary. 18. What is, now, of immense importance to note is that while a presumption of fact can be rebutted by an accused by offering an explanation, which is reasonable and plausible, a presumption of law cannot be discharged by explanation alone. What must be proved is that the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden to prove that the explanation, offered by the drawer, is true. This can be done either by eliciting materials from the cross-examination of the complainant and his witnesses or by adducing defence evidence, for, in a given case, the defence may be able to succeed in eliciting, during the course of cross-examination of the prosecution witnesses, sufficient evidence, on record, showing that the explanation offered by the accused is such that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 22. Thus, when, in a given case, the complainant holds a cheque for a sum of Rs. 1,00,000/- and the accused, during the course of cross-examination of the complainant, makes the complainant admit that the actual liability of the accused was of a sum of Rs. 50,000/- and that after the dishonour of the cheque, based on which the complaint has been made, the accused has already made payment of Rs. 50,000/- and that the accused had no further debt or other liability towards the complainant before the date, when the notice, demanding payment of the sum mentioned in the cheque was made, the burden of the accused, as envisaged u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in the prosecution appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that the appellant could not have had the knowledge of the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter his defence. 25. From the case of Abdul Rashid Ibrahim Mansuri (supra), it becomes transparent that an accused need not adduce evidence to discharge a legal presumption even if standard of discharge of such a presumption raised against him is proof beyond reasonable doubt . 26. In the present case, there can be no dispute that when the complainant held the cheque, in question, for a sum of Rs. 75,000/-, the Court was entitled and, is still entitled, to raise a presumption, under Section 139 of N.I. Act, that the cheque had been issued for the purpose of discharge, in whole or in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this cheque was dishonoured, on 30.5.96, the case of the accused was that after the cheque was dishonoured on 30.5.96, he had made the payment of his total liability, on 10.7.96, by giving a cheque for Rs. 20,000/- and it was, thereafter, that the complainant presented the earlier cheque, dated 11.5.96, to the bank, on 20.8.96 and on 17.9.96, and got the same dishonoured. 30. The question, now, is as to what, eventually, emerged from the evidence on record. In this regard, when the cross-examination of the complainant is put to a microscopic scrutiny, it clearly surfaces that the complainant admitted, in his cross-examination, at the hands of the accused, that he did receive a cheque from the accused for Rs. 20,000/- and got the same encashed. In fact, the bank accounts, produced by the complainant himself, show receipt of a sum of Rs. 20,000/- by the complainant on 10.7.96. There is nothing, either in the complaint or in the evidence on record, indicating that the accused incurred any further liability or debt after he had issued the said cheque for Rs. 75,000/-. These facts, in turn, clearly show that either the complainant had received the said cheque for Rs. 20,000/- in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pa (supra), that apart from the liability, which was, originally, created by the said cheque, the accused was also liable to pay interest on the, said amount and it was for the total amount that the cheque stood issued. The case of P.V. Kochayippa (supra) does not, therefore, lay down any law of universal application. To the facts of the case at hand, therefore, this case is not attracted. 33. What emerges from the above discussion is that the complainant was not entitled to receive the sum of Rs. 75,000/-, which the cheque, in question, reflected and when the accused had not remained liable to pay Rs. 75,000/-, the cheque, issued by the accused for the said sum of Rs. 75,000/-, ought not to have been presented to the bank for encashment and, upon its dishonour for insufficiency of fund, on 28.8.96 and on 17.9.96, the prosecution under Section 138 N.I. Act could not have been launched against the accused-petitioner. Considered thus, it is abundantly clear that the prosecution launched against the accused-petitioner was wholly impermissible in law and the accused ought not to have been he have been convicted under Section 420 IPC, for, ingredients of the offence of cheating, as d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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